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Caldeira v. Commissioner of Social Security

United States District Court, E.D. California

November 8, 2017

JESSICA ANN CALDEIRA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER DENYING PLAINTIFF'S SOCIAL SECURITY APPEAL (ECF NOS. 14, 19, 20)

         I.

         INTRODUCTION

         Plaintiff Jessica Ann Caldeira (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability benefits pursuant to the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

         Plaintiff suffers from hypertension, a history of polysubstance abuse, multiple sclerosis (“MS”), osseous spur on right calcaneus, left knee contusion, obesity, affective disorder, bipolar disorder, organic mental disorder, personality disorder, and borderline intellectual functioning. For the reasons set forth below, Plaintiff's Social Security appeal shall be denied.

         II.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff previously filed for a period of disability on January 25, 2006. (AR 152.) She appeared for a hearing on November 30, 2007. (AR 126-148.) Plaintiff's application for benefits was denied initially on July 21, 2008, and denied upon reconsideration on November 24, 2009. (AR 149-160, 161-163.)

         Plaintiff filed a second application for a period of disability and appeared for hearings on January 12, 2011, and May 5, 2011. (AR 83-103, 104-126.) Plaintiff's application was denied on October 28, 2011. (AR 19.) Plaintiff's application was denied on voluntary remand on October 28, 2011. (AR 171-186.)

         Plaintiff protectively filed the instant Title XVI application for supplemental security income on September 25, 2012. (AR 299-304.) Plaintiff's application was initially denied on May 7, 2013, and denied upon reconsideration on March 6, 2014. (AR 232-235, 239-244.) Plaintiff requested and received a hearing before Administrative Law Judge G. Ross Wheatley (“the ALJ”). Plaintiff appeared for a hearing on April 23, 2015. (AR 42-82.) On June 12, 2015, the ALJ found that Plaintiff was not disabled. (AR 16-32.) The Appeals Council denied Plaintiff's request for review on October 7, 2016. (AR 1-3.)

         A. Hearing Testimony

         Plaintiff appeared with counsel and testified at a hearing on April 23, 2015. (AR 47-72.) Plaintiff was born on October 10, 1978, and was thirty-six years old on the date of the hearing. (AR 47.) Plaintiff is 5 foot 3 inches tall and weighs approximately 300 pounds. (AR 47.) Plaintiff graduated from high school. (AR 47-48.) Plaintiff was unable to make it in a regular classroom and took special education classes. (AR 48.)

         Plaintiff lives with her father, brother, sister-in-law, and their two children who are four and five. (AR 60.) The kids are pretty active. (AR 59.) Plaintiff used to have a driver's license but never renewed it because her eyes got worse and she could not drive. (AR 64.) Her aunt drove her to the hearing. (AR 64.) Plaintiff has taken the bus a few times. (AR 64.) She went to Modesto which takes about an hour. (AR 64.) It has been a while since she did that because she usually has people drive her where she needs to go. (AR 64-65.) She usually has people take her to the doctor but she has taken the bus there before. (AR 65.)

         Sometimes Plaintiff needs help bathing or getting dressed. (AR 59.) Plaintiff father or brother will help her get into the bathtub to shower all the time because it is kind of high. (AR 59-60.) The bathtub does not have safety bars. (AR 59.) Plaintiff does not cook or help prepare food. (AR 60.) She tries to boil water or make herself breakfast but burns herself a lot. (AR 60.) She has not tried in a while. (AR 60.) Plaintiff is able to use the microwave and make herself a sandwich. (AR 60.) Plaintiff picks up after herself. (AR 61.) Plaintiff does not help with the dishes because she breaks things when she drops them. (AR 61.) Plaintiff will sweep and vacuum but she falls a lot. (AR 61.) Her brother or dad take out the trash. (AR 61.) Plaintiff used to do laundry but does not do much anymore. (AR 62.) She stopped doing laundry because she would put the wrong amount of laundry soap in or would spill it due to her shaking. (AR 62.)

         Plaintiff reads love stories, but does not remember what she reads. (AR 62.) Plaintiff has used a computer to read but has not done so in a while. (AR 62.) Plaintiff has an e-mail account and a Facebook account but has not gone on it in a while. (AR 62-63.) Plaintiff has a cellphone and texts. (AR 63.) Plaintiff watches television at night. (AR 63.) She will watch Lifetime. (AR 63.) People have to explain to her what is happening in the movies because she has a hard time focusing and keeping on task. (AR 72.)

         Plaintiff worked as a cashier and stocker. (AR 48.) Plaintiff worked at Walmart as a stocker from 1997 through 2002. (AR 49.) She also worked as a stocker and cashier, half time in each position. (AR 49.) Plaintiff worked until 2005 and stopped working because her doctor told her to go on disability because she has MS and is bipolar. (AR 50-51.)

         Plaintiff is able to read and write but her eyes are all messed up and she is not always able to see the words. (AR 50.) Plaintiff is able to do basic math skills but not all math skills. (AR 50.) Plaintiff is not always able to figure out if she gets the correct change back when she is shopping. (AR 50.)

         Plaintiff has the most problems due to her MS and bipolar disorder. (AR 51.) Plaintiff is seeing Dr. Edwards for her bipolar disorder every three months and saw him the day prior to the hearing. (AR 51-52, 54.) Dr. Edwards started her on a new medication because the other medication was not working. (AR 52.) None of the medications do very good; Plaintiff gets easily upset and will yell, scream, and throw things. (AR 52.) The doctor has told her that she needs to try her hardest to control it, but it is hard because little things make Plaintiff mad and it just comes out. (AR 53.) Sometimes her medications help, but not always. (AR 53.) Her doctor has provided her with coping strategies and she has tried them but they do not always work. (AR 53.) Plaintiff also sees a counselor every five weeks. (AR 54.) She talks to the counselor about stuff that goes on. (AR 54.) It helps a little bit to talk to the counselor. (AR 54.) The counselor calms Plaintiff down, but when she gets home it starts up again. (AR 54.) Her bipolar is worse at home because her sister-in-law is also bipolar. (AR 72.)

         Plaintiff has fatigue and shaking in her hands from her MS. (AR 70.) She loses her balance and falls a lot. (AR 71.) She has been falling a lot lately. (AR 71.) She went to the emergency room because she fell and cracked her head open about six months ago. (AR 72.)

         Plaintiff has anxiety attacks and cannot be around a lot of people. (AR 65.) Plaintiff only gets panic attacks when she is around a lot of people. (AR 71.) Plaintiff takes medication for them. (AR 65.) Plaintiff gets together with family socially, but if there are too many people around she will hide somewhere. (AR 66.) There are too many people when you go to the grocery store or if they are having a party. (AR 66.) Plaintiff used to go to the grocery store, but that was a while ago. (AR 66.) Her panic attacks have gotten worse. (AR 66.) She just told the doctor about it yesterday so they changed her medication. (AR 66.) Plaintiff used to get together with friends or family to go coffee or lunch, but has not done that in a while. (AR 66-67.) Plaintiff went to church when she was younger but has not gone recently. (AR 67.)

         Plaintiff takes medication for her high blood pressure that helps most of the time. (AR 55.) Plaintiff is trying to lose weight and has lost a little. (AR 55.) Plaintiff tries to exercise on the treadmill, but she broke her femur bone and that bothers her sometimes. (AR 55.) Plaintiff does walk but not five times a week because her legs start bothering her. (AR 55.) Plaintiff will walk around the block a couple days a week. (AR 56.) Plaintiff hurt her knee dribbling a basketball. (AR 56.) She was not playing basketball but tried to dribble the ball and was unable to do so because of her knee. (AR 56.) She was playing and trying to run and could not run because of her knee. (AR 56.)

         Plaintiff broke her femur bone and went through therapy. (AR 57.) It did not help because her knee still bothers her. (AR 57.) Plaintiff has home exercises that she does. (AR 57.) She tries to follow the program but does not always. (AR 57.) Plaintiff was told to do the exercises as much as she can and she does them three days a week. (AR 57.) Plaintiff has a stretching plan where she is to lie on the ground and move around to stretch her knee and back. (AR 57.) She tries to do the program but cannot lie on the floor because she hurt her tailbone. (AR 57.) Somebody hit her in the tailbone a long time ago. (AR 58.)

         Plaintiff gets shots for her MS. (AR 58.) She gives herself the shots or someone else will give her the shots. (AR 58.) The shots do not help; she still has fatigue and shaking. (AR 58.) The doctor tried to give her something to calm the shaking but she still has shaking. (AR 58-59.) Sometimes Plaintiff forgets to take her medications because she has a memory problem. (AR 59.) Her family will remind her that she needs to take them. (AR 59.) Plaintiff has difficulty with her memory because of her eyes. (AR 72.)

         Plaintiff is able to walk around the block. (AR 67.) She is very weak and can only lift five or ten pounds. (AR 67.) Plaintiff can pick up a gallon of milk. (AR 68.) She has tried to pick up her niece or nephew. (AR 68.) Her nephew is too heavy for her. (AR 68.) He weighs about thirty pounds. (AR 68.) She used to be able to pick him up when he was two, but now he is four. (AR 68.)

         Plaintiff used to smoke but she stopped three or four years ago. (AR 68.) Plaintiff used to drink but stopped. (AR 69.) She is not supposed to drink because of her MS. (AR 69.) Plaintiff used crank in the past. (AR 69.) It has been eight years since she used. (AR 69.) Plaintiff does not do meth or amphetamines. (AR 69-70.) Plaintiff's doctor has not had her take a drug test. (AR 70.)

         A vocational expert (“VE”), Lorian I. Hyatt, also testified at the hearing. (AR 73-80.) The VE classified Plaintiff's past work as a retail cashier, Dictionary of Occupational Titles (“DOT”) 290.477-014, light with a specific vocational preparation (“SVP”) of 3; and stocker, DOT 299.367-014, heavy with an SVE of 4. (AR 74.)

         The ALJ proffered a hypothetical of an individual of Plaintiff's age, education and work experience who is capable of performing work at the light level, defined as standing or walking for approximately four hours in an eight-hour day; sitting up to six hours in an eight-hour day with normal breaks; no ladders, ropes or scaffolds; occasional ramps/stairs, balancing, stooping, crouching, kneeling, and crawling. (AR 75.) The individual should avoid concentrated exposure to extreme heat and moderate exposure to hazardous machinery and unprotected heights. (AR 75.) Work is limited to simple as defined in the DOT as SVP levels 1 and 2, routine and repetitive tasks involving only occasional changes in the work setting, and occasional interaction with the general public, coworkers, and supervisors. (AR 74-75.) The VE opined that this individual would not be able to perform Plaintiff's past work due to the restriction to light and simple work. (AR 76.)

         The individual would be able to work as an office helper, DOT 239.567-010, light with an SVP of 2. (AR 76.) Eroding the overall labor market by 25 percent for the limitation regarding public contact would leave 75, 000 jobs nationwide and 7, 500 jobs in the state of California. (AR 76, 77.) The individual would also be able to work as a mail sorter, DOT 209.687-026, light with SVP of 2, with approximately 115, 000 jobs in the nation and 10, 000 in California. (AR 76.) There would be no significant erosion for this job. (AR 76-77.) The individual would also be able to work as an inspector, DOT 559.687-074, light with SVP of 2, with 230, 000 jobs nationally and 48, 000 in California. (AR 77.)

         The ALJ proffered a second hypothetical of the same individual with the same limitations but who would also require a sit/stand option allowing them to sit or stand at will provided that they are not off task more than ten percent of the period. (AR 77-78.) The office helper position would be errored an additional 25 percent, the mail sorter would be eroded by 50 percent; and the inspector would be eroded by 50 percent to accommodate the sit/stand option. (AR 78.)

         The ALJ added with respect to both of the above hypotheticals the limitation that the individual would need close supervision as defined by having a supervisor check on them four times throughout the day. (AR 78.) The VE opined that would not change the jobs available. (AR 78.)

         The ALJ proffered a third hypothetical of an individual who had the additional limitation that due to a combination of medical conditions, and associated pain and mental impairments would be likely to have three to four unexcused or unscheduled absences per month. (AR 79.) The VE opined that there would be no jobs for this individual. (AR 79.)

         The ALJ added the additional limitation to the first and second hypothetical that due to a combination of conditions and associated pain and mental impairments the individual would be unable to sustain work activity on a regular and continuing basis for eight hours a day five days a week for a 40-hour workweek or an equivalent schedule. (AR 79.) The VE opined that there would be no work available for this individual. (AR 79.) The VE opined that her testimony was consistent with the DOT and her labor market experience which was utilized for the erosion factor. (AR 79.)

         Plaintiffs counsel proffered a hypothetical of the second hypothetical with the additional limitation of occasional fingering and fine manipulation. (AR 80.) The VE opined that there would be no work for this individual. (AR 80.) The VE stated that if you added this information into the DOT sorting instrument, it would come up with jobs the individual could perform, but that she disagreed that any jobs would be available. (AR 80.)

         Plaintiffs counsel asked if any work would be available at the sedentary level. (AR 80.) The VE opined that there would be no jobs available. (AR 80.)

         B. ALJ Findings

         The ALJ made the following findings of fact and conclusions of law.

• Plaintiff has not engaged in substantial gainful activity since the application date of September 25, 2012.
• Plaintiff has the following severe impairments: multiple sclerosis, osseous spur on right calcaneus, left knee contusion, obesity, affective disorder, bipolar disorder, organic mental disorder, personality disorder, and borderline intellectual functioning.
• Plaintiff does not have an impairment or combination of impairments that meets or medical equals the severity of one of the listed impairments.
• Plaintiff has the residual functional capacity to perform light work as defined in the regulations with the following limitations: Plaintiff is able stand or walk for four hours, and sit for six hours during a normal eight-hour workday. She can never climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and crawl. Plaintiff must avoid concentrated exposure to extreme cold and heat and even moderate expose to hazardous machinery and unprotected heights. Plaintiff is limited to simple work, defined in the DOT as SVP, routing and repetitive tasks. Plaintiff is limited to occasional changes in the work setting and occasional interaction with the public, coworkers, and supervisors. Plaintiff requires close supervision while working, defined as checking on the individual four times throughout the workday.
• Plaintiff is unable to perform any past relevant work.
• Plaintiff was born on October 10, 1978, and was 33 years old, which is defined as a younger aged individual age 18-49, on ...

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